Chappelow v Atonio [2005] WSDC 4 (11 February 2005)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

IN THE MATTER: JOSHUA CHAPPELOW
of Vaivase-tai, Civil Engineer.
Plaintiff

AND:

SU’A ATONIO
of Samusu, Aleipata, Member of Parliament.
Defendant

Counsels: R. Drake for plaintiff
H. Schuster for defendant

Decision: 11^th February 2005

DECISION OF NELSON, DCJ

The lead up circumstances to the accident in this matter are not in dispute: on Monday 27^th November 2000 the plaintiff was proceeding along the Main East Coast Road travelling to Apia. At Fagalii-tai he stopped behind the Fagalii bus which was stationary and which was, as is dangerous but not unusual in this country, parked on the road picking up passengers. The road was busy it being about 7am on a Monday morning and the plaintiff waited for the oncoming traffic to clear. The plaintiff was driving his black soft-top Suzuki Sidekick jeep registration number 7682 (“the jeep’”). Seated beside him in the front was his friend Tavita and in the rear Tavita’s sister Fetalai and a young niece. A van pulled in behind the jeep to also wait for the oncoming traffic to clear. The evidence shows that while these vehicles were stopped the defendants bus fully laden with passengers travelling from Aleipata to Apia and being driven by him as his normal driver was ill, struck the rear of the van which appeared to be pulling out of the queue of cars to overtake the jeep and the Fagalii bus. The van was propelled forward and it struck the rear of the jeep. Damage was caused mainly to the rear of the vehicle but there was also some damage to the front caused by it being pushed into the back of the Fagalii bus.

The plaintiff did not give evidence because subsequent to the accident he returned to Australia. But Tavita and Fetalai were called and they testified that after the accident the defendants bus pulled out and kept going and they gave chase. The bus only stopped infront of Michelle’s Mini-mart at the four-corners at Matautu-uta. The plaintiff and Tavita confronted the defendant and obtained his details. Tavita says the defendant apologized to them and said he was in the wrong (“malie, ua sese a’u”). The defendant made no mention to them of defective brakes or any other cause for the accident. The defendant then left the area. The plaintiffs witnesses say their jeep was struck twice once by the van which then veered away and the second time by the defendants bus. They do not know why the defendants bus failed to stop and they dispute the defendants evidence that he stopped his bus some 50 metres down the road after the accident occurred.

The defendants evidence is that he saw the queue of stationary cars behind the Fagalii bus. He then slowed down and used the gears of the bus and his brakes to stop the vehicle. He says he was intending to overtake the stationary vehicles because the way was clear, a course of action which if correct was risky to say the least given that the defendant was in a fully laden bus attempting to overtake three vehicles. He makes no mention of using his horn to warn the stationary vehicles of his proposed action which a reasonable and prudent bus driver would have done in the circumstances. He says as he neared the cars the van also pulled out to overtake the stationary cars so he immediately braked. The brakes however which had been functioning without problem to this point suddenly failed and he struck the van which in turn struck the rear of the plaintiffs jeep. He says he kept going and stopped the bus some 50 meters down the road. He found there that the bus had no brakes (he did not explain why he kept going post impact or how he was able to stop the vehicle) and said he drove the bus nevertheless to Michelles Mini-mart at Matautu-uta where he stopped to let off passengers. He then drove the bus through town and in front of the Protestant Church on Main Beach Road the gears jammed and the bus would go no further. His engineer came and towed the bus away to fix. He went and reported the accident to the Police.

The defendants engineers evidence was that he looks after the bus and that the bus had a current warrant of fitness and licence. He said the brakes worked fine when he checked them for vehicle licensing in September 2000 some two months before the accident. I would expect him to say nothing less. On the day in question the bus had to be towed to his workshop. He checked the vehicle and found the brake hose leading to the right front side wheel had burst. Brake fluid had consequently leaked out causing the brakes to fail. His evidence also was that once this occurs the bus cannot be stopped using its brakes. He says the bus has a hand brake but it is inadequate for stopping a moving omnibus. I find that suggestion more than a little curious. The engineer says he installed a new brake hose the same day and after testing returned the bus to the defendant who personally uplifted the vehicle. The defendant confirms he purchased a new brake hose that day but was unable to produce a receipt for same. The defendant was also unable to explain why there is no reference in the police report on the accident (produced as Exhibit 4 for the plaintiff) to sudden and unexpected brake failure as being the cause of the accident. Having observed the witnesses manner and demeanour I must say the credibility of the defence evidence leaves much to be desired.

In this case an action has been brought in negligence in the plaintiffs name. It alleges the defendants negligence caused the accident and the damage to the plaintiffs jeep, damage which cost $8,175.44 to repair as confirmed by the plaintiffs insurers in their letter dated 13^th July 2001 to the defendant produced as Exhibit 12 for the plaintiff (“Exhibit 12”). The plaintiff also pleads the doctrine of res ipsa loquitur which loosely translated means “the matter speaks for itself.” But the evidence reveals that in fact the real plaintiff is the plaintiffs insurers Progressive Insurance (“Progressive”). The manager of Progressive Mr Filemu gave evidence and he says the action was brought on their instructions pursuant to the doctrine of subrogation. That doctrine properly and commonly allows the insurer to stand in the shoes of a claimant client to whom the insurer has fully discharged its liability under a policy of insurance. All rights and causes of action accruing to the claimant are then transferable as of right to the insurer who can legitimately bring an action such as this in the name of the claimant: see the judgment of Sapolu, CJ in NPI and Potoi v Cardinal Taofinuu and Onosai Filipo [1994] Supreme Court decisions 253 in particular at pages 255 to 258. The letter dated 13^th July 2001 from Progressive to the defendant clearly indicates they have settled the plaintiffs claim for repair costs to the jeep and they seek either that the defendants insurers reimburse this cost pursuant to the defendants policy of insurance or the defendant himself make good this cost. The action has therefore been quite properly brought and there is no substance to the defendants submission that it has not.

The evidence also reveals further significant facts: Mr Filemu’s notes on Exhibit 12 as confirmed by him in his oral evidence was that the defendant called into their offices on 28^th September 2001 and confirmed his bus was insured with another insurer National Pacific Insurance Limited (“NPI”). They discussed the letter and went over the repair costs and the defendant indicated he was referring the matter to NPI and that very day was giving them a copy of Progressives letter. Filemu followed up the matter personally with NPI who confirmed the defendants third party insurance was current as at the date of the accident. It seems clear from all this evidence that the defendant seemed content to let the insurers resolve the matter. No doubt because that is exactly what policies of insurance are for. In his evidence the defendant confirms he gave NPI the Progressive letter but says he objected to NPI paying out the claim as he was not at fault in the accident. That may be so but the issue of fault or otherwise is not a matter for the defendant to determine, it is a matter for his insurance company who are the indemnifiers of liability.

The further significant fact revealed by the evidence is that on 26^th October 2001 NPI issued a cheque in the defendants name in the sum of $7,175.44 being the amount of Progressives claim less the $1,000 excess on the defendants policy. This was a cheque for settlement of the defendants liability to Progressive. The cheque was released to the defendants wife on 28^th March 2002 as confirmed by NPIs letter to Progressives lawyers produced as Exhibit 13 for the plaintiff (“Exhibit 13”). Filemu’s evidence was none of this money was ever paid to them even though quite clearly, the money was intended to settle the Progressive claim. He also believes NPI would not have settled the claim if they believed the defendant was not at fault in the accident. There is some force in this point of view.

When confronted at the trial with these facts and Exhibit 13 for the plaintiff, the defendant claimed no knowledge of same. His counsel also appeared taken by surprise and the proceedings were adjourned at his request to look into this aspect. The legal ramifications of this evidence were pointed out to and were clearly noted by counsel. When the proceedings resumed on 17^th July 2003 however counsel advised the court his instructions were to proceed with defence of the action. The defendant in his evidence said that after his initial meeting with NPI he did not follow up the matter further. He claimed surprise at Exhibit 13 and says he did not know his wife had uplifted the cheque and used the funds. How she was able to use a cheque which was made out to him he did not explain. He argues that notwithstanding the clear purpose of the cheque he is under no obligation to pay these monies to Progressive. Again he relies on the assertion that he was not at fault and that a latent mechanical defect caused the accident. He says only NPI if anyone is entitled to bring an action against him to recover their funds and NPI have chosen not to do so. He did not explain why NPI would have any interest in pursuing monies due to a competitor.

Although these proceedings have been brought on the basis of a cause of action in negligence there is another basis upon which the defendant can be found liable – that is on the basis of the equitable doctrine of unjust enrichment. A clear enunciation of the relevant principles and their applicability is contained in the very thorough judgment of Sapolu CJ in Elisara v Elisara [1994] Supreme Court decisions 379 where the learned Chief Justice reviewed a number of overseas authorities and at page 396 cites with approval the following passage:

“the principle of unjust enrichment lies at the heart of the constructive trust. ‘Unjust enrichment’ has played a role in Anglo-American legal writing for centuries. Lord Mansfield, in the case of Moses v Macferlan [1760] EngR 713; [1960], 2 Burr 1005 at p.1012[1760] EngR 713; , 97 ER 676, put the matter in these words: ‘... the gist of this kind of action is that the defendant upon the circumstances of the case is obliged by the ties of natural justice and equity to refund the money’. It would be undesirable and indeed impossible to attempt to define all the circumstances in which an unjust enrichment might arise... The great advantage of ancient principles of equity is their flexibility: the judiciary is thus able to shape these malleable principles so as to accommodate the changing needs and mores of society in order to achieve justice. The constructive trust has proven to be a useful tool in the judicial armoury...there are three requirements to be satisfied before an unjust enrichment can be said to exist; an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment. This approach it seems to me is supported by general principles of equity that have been fashioned by the courts for centuries, though admittedly not in the context of matrimonial property controversies.”

And at page 406 the Chief Justice observes:

“... it is clear to me that the unjust enrichment approach can be used to achieve the goal of what is “fair and reasonable” or what is “fair and just” in the particular circumstances of a case, which is the goal or destination every system of justice in the common law world is aiming for. It appears to me that all the various tests referred to have as their aim the doing of what is fair, reasonable and just. A test which does not meet those criteria should not qualify as a test in a legal system aimed at doing justice.”

The Samoan courts have applied this doctrine to many differing scenarios most commonly in relation to claims for compensation for improvements to land the prime examples being the Reid v Fiso and Westerland v Pati decisions in the Supreme Court and Court of Appeal in 2001 and 2002. Elisara v Elisara itself was a case involving division of matrimonial property but the courts have also held the doctrine to apply to cases of a mistaken double payment by a bank to a customer – see the decision of Vaai, J in Westpac Bank v Ah Wa Ltd. unreported judgment dated 19^th December 2003 and the decision of Ryan, CJ in ANZ Banking Group v Ale [1980 – 1993] WSLR 468, one of the earliest decisions of our courts in this area. The situation in the present case is in my view analagous to the mistaken bank payment authorities of which Ryan CJ said at the end of his judgment in ANZ Banking Group v Ale:

“the defendant has been enriched by the receipt of a benefit of $16,010 more than he should have been; he has been so enriched at the banks expense; and finally it would be most unjust to allow him to retain the benefit.”

As made clear by our Court of Appeal in Reid v Fiso at page 7 of its unreported judgment dated 23^rd November 2001:

“the cases show that the essential requirements are the deriving of a benefit by the defendant at the cost of or detriment to the plaintiff, in circumstances in which it would be unfair for that benefit to be retained by the defendant. The ultimate test is the unfairness of allowing the benefit to be retained by the defendant.” (underlining is mine).

There is no doubt the cheque drawn by NPI and made out to the defendant was a cheque for settlement of the plaintiffs damages occasioned by the accident. As Progressive had settled the plaintiffs claim there is equally no doubt Progressive was entitled to these funds. The cheque was released to the defendants wife and even if I accepted that he knew nothing about his wifes use of such a substantial sum of money, neither the defendant nor his wife is entitled to these monies. They have received more than they are entitled to and have been enriched at Progressives expense. It would be unjust and unconscionable to allow the defendant to keep monies clearly intended for Progressive who quite properly stand in the plaintiffs shoes in this matter. I am not impressed by the fact that after a three month adjournment in hearing of these proceedings the defendant nevertheless continues to maintain a fictional and nebulous claim to these funds. To suggest the proper plaintiff can only be NPI is artificial and absurd given the contents of the NPI letter dated 16^th April 2003 produced as Exhibit 13. The defendant seeks to keep something he was not entitled to in the first place. He has the temerity to ask the court to assist him in this endeavour. There is no question he has been unjustly enriched in the sum of $7,175.44 and is liable to account to the plaintiff for these funds and that is a most proper basis upon which these proceedings can and in my view should be dealt with.

Given the stand taken by the defendant even in the face of most compelling evidence that he was not in any way entitled to retain Progressives funds, this is also an appropriate case for the award of the general damages sought by the plaintiff to compensate the plaintiff for not having the use of these funds when he should have. It is also a case whose circumstances fully justify an award of costs including party to party costs in favour of the plaintiff.

I would add that had I decided this matter on the basis of negligence as pleaded by the plaintiff I would also have found against the defendant. There are too many unexplained inconsistencies in his evidence and his candour was fluffy. “Fluffy” is defined by the Oxford dictionary as a soft amorphous mass not really amounting to anything. Neither was his witness any more convincing. He also overlooks the fact that his negligence can be said to have arisen when while carrying a full load of passengers he attempted to overtake three stationary vehicles without any or adequate warning. This was the manoeuvre he was engaged in when the brakes allegedly failed. From that perspective his driving can be held to have become negligent before any failure in the vehicles systems occurred. I would additionally have found that the defendant failed to discharge the burden on him of proving that the accident was not his fault or caused by his negligence. While there is some evidence the accident may have been caused by a sudden bursting of the brake hose the evidence did not show that such condition was the result of a latent and concealed mechanical defect or that such defect was not discoverable by the use of reasonable care, which reasonable care the defendant had at all material times exercised. The expert and other evidence or more correctly the lack thereof called by the defendant was inadequate on this aspect. Equally there was no testimony concerning the age and condition of the vehicle, regularity of inspections of its braking system, possible causes of the burst of the brake hose, how soon such bursting would become apparent to a reasonably skilled and prudent driver, and other such factors. The evidence presented was in my view insufficient to discharge the onus upon the defendant to prove that which he needed to do in order to successfully raise a defence of latent mechanical defect. The sorts of issues to consider are those outlined in the authorities submitted by counsel for the defendant of Henderson v Jenkins and Sons [1970] AC 282 and Rees v Saville [1983] RTR 332. Had the decision been made on this ground the other heads of damage sought by the plaintiff would have been viewed in a different light. A decision on that basis however would fail to address the more important and fundamental issue emerging from the facts of this case viz. the defendants unjust enrichment from the NPI funds.

Accordingly judgment will be given in favour of the plaintiff as follows:

(i) in the sum of $7,175.44 as specific damages;
(ii) in the sum of $800 for general damages;
(iii) for the full costs of the plaintiff including court, witness and solicitors fees in an amount to be determined by the court. To this end plaintiffs counsel is to file and serve her memorandum of costs within seven days hereof.

DISTRICT COURT JUDGE